Leonard v. Shirts

33 Ind. 214

• Court: Indiana Supreme Court
• Decided: July 1, 1870
• Status: Published

Opinion

Ray, J.

Action by appellee upon a contract leasing to-Leonard a farm for two years from March; 1st, 1866, charging various breaches- of' the contract and! joining tbe co-appellants, wbo executed this-agreement: “We guarantee that John R. Leonard shall perform his agreements in the foregoing contract.^ One part of the original contract was, that Leonard should pay the appellee one thousand dollars for the two years rent, in two payments of five hundred dollar» each, for which he was to give his notes with surety to the satisfaction- of the appellee. A demurrer was overruled to> the statement of the cause of action. The complaint alleges, that Leonard took possession and failed to execute such note» ®r pay the-sum due, and that notice of this fact was given said! guarantors on the 1st ®f January, '1867!- It is. insisted t.bnfc tlie neglect to notify the guarantors at an earlier date, of the failure of Leonard to give the notes, released them from liability. But it is plain that the principal thing intended by this contract was the payment of the money, and that the giving of the notes could be waiyed by the appellee, if the guarantors did not themselves see that the notes were executed and tendered. This duty rested upon them and was a matter for their own protection and security, and their neglect affords no defense against the liability which was incurred by them in guaranteeing that Leonard should pay the money. The same question is presented by answers, to which demurrers were properly sustained.

J. O’Brien and J. W. Evans, for appellants. A. F. Shirts, for appellee.

Judgment affirmed, with three per cent, damages and costs.